Opinion
June 21, 1954.
In a stockholder's derivative action, order dated March 4, 1954, granting reargument and on reargument adhering to the original determination, modified by striking therefrom everything which follows the words "upon reargument" and by adding thereto a provision that the motion for separate trial of the issue of futility of a demand on the directors to sue on behalf of the corporation be granted, without costs. As so modified order affirmed, with one bill of $10 costs and disbursements to appellants. Appeal from order dated December 4, 1953, dismissed, without costs. The trial of the separate issue of futility of serving the demand works no prejudice to the plaintiff and may obviate the necessity for a protracted trial on the merits, which necessarily will involve evidence not material to the issue of futility of a demand. ( People ex rel. New York Central R.R. Co. v. Bissell, 207 App. Div. 705, 707; Hmar v. Texas Co., 235 App. Div. 731.) MacCrate, Beldock and Murphy, JJ., concur; Nolan, P.J., and Adel, J., concur in the dismissal of the appeal from the order dated December 4, 1953, but dissent as to the modification of the order dated March 4, 1954, and vote to affirm said order without modification.